Arkwright v. State

• Decision Date: 09 November 1967
• Docket Number: No. 24330,24330
• Citation: 223 Ga. 768,158 S.E.2d 370
• Parties: Willie ARKWRIGHT v. The STATE.
• Court: Georgia Supreme Court

Page 370

158 S.E.2d 370

223 Ga. 768

Willie ARKWRIGHT v. The STATE.

No. 24330.

Supreme Court of Georgia.

Nov. 9, 1967.

Stay of Execution Denied Nov. 20, 1967.

Syllabus by the Court

1. The evidence strongly and without question shows that the defendant is guilty of rape as found by the jury.

2. It is the well established law of this state that it is not error for the court to exclude from the panel of jurors put upon the defendant in a capital felony case those who are opposed to capital punishment, as they would not be impartial jurors in such case.

3. It was not error for the court to fail to charge the law as to assault with intent to rape, where under the evidence and the defendant's own statement he was guilty of rape, as he admitted that he aided and abetted his companion in raping the victim.

4. It was not error for the court to permit the jury to disperse after returning its verdict and before the verdict was read and published, where counsel for the State and the defendant agreed to such procedure. The defendant, after keeping silent while his attorneys made the agreement, will not be heard thereafter to deny the authority of his counsel to make it.

5. The enumeration of error that the court erred in admitting certain photographs in evidence and making a certain statement is not substantiated by the record, as it does not show that either happened.

Limerick L. Odom, L. H. Hilton, Sylvania, Kravitch & Hendrix, Aaron Kravitch, Savannah, for appellant.

Cohen Anderson, Sol. Gen., Statesboro, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Mathew Robins, Deputy Asst. Atty. Gen., Atlanta, for appellee.

MOBLEY, Justice.

The defendant and Johnnie B. Williams were jointly indicted for rape. The defendant requested a severance and the case proceeded to trial against him. He was found guilty without a recommendation of mercy and was sentenced to death. From this verdict and judgment he appealed. He filed enumerations of errors on August 31 and on September 5, 1967, within ten days after the transcript of record was filed in this court, as required by the Appellate Practice Act (Ga.L.1965, pp. 18, 29, as amended by Ga.L.1965, pp. 240, 243; Code Ann. § 6-810), and the rules of this court. Rule 20 (221 Ga. 884). A purported amendment to the enumerations of errors, filed after the time allowed for filing of the enumeration of errors, will not be considered by this court for failure to comply with the Appellate Practice Act and the rules of this court. Foskey v. Kirkland, 221 Ga. 773(1), 147 S.E.2d 310.

1. In his enumeration of errors the defendant alleges that the verdict is contrary to the evidence and without evidence to support it, and contrary to law and the principles of justice and equity. This contention is wholly without merit. The evidence shows that the defendant and Williams went to the home of the victim, which was in the country with no other home nearby, entered the home, robbed her of the money she had, then choked her, threatened to kill her, and dragged her into the woods, where she was held by Williams while, according to the defendant, he attempted to have sexual relations with her but was unable to do so. The victim testified that the defendant did accomplish his purpose, that he then held her while Williams raped her, and then the defendant again raped her. The doctor who examined her shortly afterwards at the hospital, where she was brought by a neighbor, testified that there was male sperm in her vagina and that she was in a state of shock or hysteria. After raping the victim, Williams stripped her wedding ring and band from her finger, and the defendant and Williams tied her to a tree and left her in the woods. She released herself and went looking for her four-year old child, who was alone at home with her when the defendant and Williams had entered the house. She was picked up on the road by a friend, as was her child, who had been seen walking down the road. The evidence shows the cruel, inhumane, wholly unprovoked, dastardly crime of rape committed upon this helpless young woman by the defendant and his companion.

2. The enumeration of error alleging that the court refused to declare a mistrial on the ground that the court had excluded from the panel of 48 jurors each juror who was opposed to capital punishment, in violation of the Fifth and Sixth Amendments of the United States Constitution (Code §§ 1-805, 1-806), has been settled adversely to the defendant's contention by full bench decisions of this court. Massey v. State, 222 Ga. 143(5), 150, 149 S.E.2d 118; Cobb v. State, 222 Ga. 733, 737(3), 152 S.E.2d 403; Gunter v. State, 223 Ga. 290(2), 154 S.E.2d 608, and cases cited.

3. Ground 3 enumerates as error the failure of the court to charge the jury the law with respect to assault with intent to rape. The victim testified that the defendant raped her twice and Williams raped her once, each aiding and abetting the other by holding her while the other raped her. The defendant admitted in his unsworn statement that he attempted to rape her twice, while Williams held her, and that he held her while Williams raped her. Under any theory of the evidence, the defendant was guilty of rape. If he actually raped her, as the victim testified, or if he aided and abetted Williams in raping her, he is guilty of rape, and consequently the court did not err in omitting to charge upon the subject of assault with intent to commit rape. Bailey v. State, 153 Ga. 413(2), 112 S.E. 453. See also Whitley v. State, 188 Ga. 177, 178(2), 3 S.E.2d 588, and cases cited.

4. It is asserted that the court erred in permitting the jury to disperse after returning its verdict and before the verdict was read and published. The record shows that before the judge charged the jury, counsel for the defendant and the State made the following agreement, as it appears...